THE BLOG
11/26/2014 04:40 pm ET Updated Jan 26, 2015

Ferguson, Racism and Pro-Law Enforcement Bias

St. Louis Post-Dispatch via Getty Images

It's not rocket science. The question for the grand jury was not whether Ferguson, Missouri Police Officer Daren Wilson was guilty of a crime when he shot and killed Michael Brown. No, the sole and only question before the grand jury was whether there was probable cause to believe that Ferguson, Missouri Police Officer Daren Wilson engaged in a criminal act when he shot and killed Michael Brown (probable cause is an objectively reasonable belief that it was likely that a crime has been committed). They are vastly different questions.

Ultimately, the latter question simply required the grand jury to determine whether it was objectively reasonable for Officer Wilson to believe that shooting Mr. Brown -- multiple times at a significant distance from where Officer Wilson was situated and causing Michael Brown's death, was necessary in order to protect himself (Officer Wilson), or others, from the imminent use of deadly force by Michael Brown against Officer Wilson or others or the imminent infliction of serious bodily harm by Michael Brown against himself (Officer Wilson) or against others.

As the Prosecuting Attorney himself acknowledged in his own statement to the world, the least reliable and least relevant evidence before the grand jury in performing its function respecting it's analysis of Wilson's conduct and making its determination whether it was more likely than less likely than Wilson's conduct was criminal, was Wilson's self-serving statement to the grand jury precisely because it was Wilson's conduct that was the subject of the grand jury proceeding. The prosecutor was obligated to tell the grand jury of that fact.

It is sad, indeed tragic, to say, however, that, because a smorgasbord of evidence was presented to the grand jury by the prosecutors rather than a presentation of a narrowly constructed relevant universe of evidence, it appears that the prosecutor was attempting to make Michael Brown's conduct the focus of the grand jury's investigation and was attempting to make Officer Wilson the victim of some unlawful conduct-crime on the part of Michael Brown.

That's a classic criminal defense attorney's tactic (turning the table on the victim of a crime and making the perpetrator of the crime the victim of a crime). It is not, however, an honest prosecutor's grand jury strategy whose mission as a prosecutor, in doing justice and thereby carrying out his duty to the public, is to obtain an indictment against whoever engaged in more likely than less likely criminal conduct, police officers included (in this case Officer Wilson).

So, the sole issue at this grand jury phase of the criminal "justice" process was, independent of why Officer Wilson testified he was supposedly justified in engaging in homicidal conduct, whether, based on the other relevant evidence, it was objectively reasonable for Wilson to discharge his gun and kill Michael Brown or whether it was more likely than less likely that his conduct was criminal.

The relevant evidence in this regard establishes that, at a relatively long distance from Michael Brown, Officer Wilson discharged twelve shots at Michael Brown from Wilson's Ferguson Police Department issued gun; and that, without any objectively reasonable basis to believe that Brown was armed with a gun or any other weapon or that Michael Brown was close enough to Wilson to inflict serious bodily harm against Wilson, Wilson intentionally shot and killed the unarmed Michael Brown. Whether Wilson's self-serving testimonies,including his testimonies that Brown supposedly reached into his waist band, eventually rules the day at a public trial as to whether Wilson is guilty or non guilty beyond a reasonable doubt of the indictment's homicide charge, was, at this point, irrelevant. It's that simple.

The only question for this grand jury, then, was what degree of homicide should have been encompassed in the grand jury's indictment of Wilson. That is what the Prosecuting Attorney's office should have instructed that grand jury: that it was his judgment (the prosecutor's judgment) that the grand jury should return some form of homicide charge against Wilson (preferably a higher degree of homicide rather than a lesser manslaughter degree). If the Prosecutor had performed his function as he ordinarily would do in a case under like circumstances but not involving a police officer, the grand jury would have done so.

Wilson's defense to the criminal charge, properly presented to a jury in the full light of an open courtroom at a trial on the charge for which he should have been indicted for some degree of homicide, would, ultimately, be the determinative factor in an independent jury's determination of whether Wilson was guilty or not guilty beyond a reasonable doubt, but only after that jury saw and heard all of the evidence and weighed the credibility of all of the witnesses, Wilson included; and only after vigorous cross examination by Wilson's defense attorney of witnesses produced at the trial and, as well, by the people's prosecutor, performing his function in the full light of day and an open courtroom, of Wilson should Wilson have elected to take the witness stand in the full light of the open courtroom and not, as he did, in the secrecy and darkness of a grand jury room closed to the public scrutiny of how the process played out inside of that room.

Why didn't the grand jury do its job and issue a true bill of some form of homicide against Wilson, preferably an intentional homicide charge but, at the very least, a voluntary manslaughter charge? The grand jury failed to do so because the prosecutor failed to do his job. The prosecutor's function was to navigate the grand jury members to return a criminal homicide charge and indictment against Wilson. In failing to do so, the prosecutor violated the trust which he owed not simply to Michael Brown's parents and family but as well to the Ferguson community and to each and every one of us in this nation. The prosecutor should be held accountable for such and he should be recalled and removed from office for the gross dereliction of his duty.

Why didn't the prosecutor do his job as he would ordinarily do so in a non-police shooting case where a death resulted and some form of a homicide charge was being sought? The prosecutor didn't do so because he didn't want to do so. And he didn't want to do so because he had a conflict. He believed in the innocence of the officer because, among other reasons, he relies on Wilson and his fellow Ferguson Police Department colleagues to successfully prosecute crimes, often times of African American males, in St. Louis County

In effect, Wilson was a member of the prosecutor's law enforcement family. There was, if not actual conflict in his function in this grand jury process, a very visible perception of conflict. And so the case was intentionally blown up by the prosecutor. It's not rocket science. It's really that simple. Just as the prosecutor would be derelict in investigating and presenting a case in the grand jury against his cousin, because of the obvious fact of conflict, so, too, in this case he was derelict when he declined to remove himself from this matter (as was the governor when he declined to remove the prosecutor from this matter).

When you add the factor of race into the equation as one is absolutely required to do in the everyday reality of American life, what you have is a toxic mix that can lead to the only one place it could lead: explosive injustice. If the subject of the grand jury had been a young African American police officer who had shot a young white male, would we be having this discussion? Be honest when you answer this question. Don't be in denial.

That is why an office of special prosecutor is required in these cases. Such therefore necessarily now becomes the role of the federal government. If there is ever to be justice in these kinds of cases and in this case particularly, nothing less than that will do. That is why the United States government should return an independent standing indictment on a federal civil rights charge (no double jeopardy does not apply because it will be for an independent standing federal crime not a state law crime), however difficult it will be to obtain a conviction (remember the Rodney King case); and the United States Justice Department should move to have the Ferguson Police Department placed in receivership because of the systemic failures over time to protect the minority residents and citizens of Ferguson.

James I. Meyerson is a former Assistant General Counsel in the Office of the General Counsel of the NAACP (1970-1981); and since and at present an active civil rights attorney whose focus is law enforcement misconduct.